[¶1] -- In 2010, our legislature passed a law prohibiting racial discrimination in Washington public schools. In doing so, the legislature directed the Office of Superintendent of Public Instruction (OSPI) to enforce and obtain compliance with its nondiscrimination mandate. Subsequently, in May 2011, the OSPI engaged in formal rule making pursuant to this directive. As part of this, the OSPI authorized an administrative enforcement procedure and indicated that compliance with relevant federal civil rights law would constitute compliance with the legislature's nondiscrimination mandate. Shortly thereafter, in February 2012, the OSPI articulated a specific compliance [186 Wn.App. 944] standard without reference to federal law. Our task is to determine the proper compliance standard in administrative enforcement proceedings in this interim period.

[¶2] This task is set against the backdrop of an administrative enforcement proceeding against the Mercer Island School District (District), initiated as a result of its allegedly improper response to several incidents of student-on-student peer racial harassment. Following an administrative hearing, the OSPI--through its designee administrative law judge--concluded that the District had displayed " deliberate indifference" to the incidents of racial harassment and had, thereby, failed to comply with the legislature's 2010 nondiscrimination mandate. The District filed an administrative appeal in King County Superior Court, which resulted in reversal of the OSPI's decision. We now reverse the superior court and reinstate the OSPI's decision.

I

[¶3] During the 2011-12 school year, B.W. was subjected, on two occasions, to peer racial

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harassment.[1] At the time, B.W. was in seventh grade at Islander Middle School--a public school within the Mercer Island School District. It was B.W.'s first year attending school in the District. His parents, N.W. and R.W. (collectively Parents), had relocated their family to Mercer Island from out of state. B.W.'s father, N.W., is white; B.W.'s mother, R.W., is black.

[¶4] B.W. had been diagnosed with Asperger's syndrome and attention deficit hyperactivity disorder. Because of these diagnoses, B.W. had, in his previous school district, participated in an individualized education program. However, after a one-week trial period with a similar program in the District, the Parents chose to discontinue B.W.'s participation [186 Wn.App. 945]. They did so because the program offered by the District required B.W. to leave the general education classroom in order to participate.

[¶5] The two incidents of racial harassment took place in October 2011. Both occurred in B.W.'s social studies class, which was taught by Jan Brousseau.

[¶6] The first incident occurred on October 5. On that day, B.W. was working on a group project--referred to as " Rock Around Washington" --with three other boys--Students A, B, and C. Student A was " saying cruel things" directly to B.W. and was whispering " in hushed tones to [Student B]." When B.W. " offered an idea about the project," Student A told him, " Shut up, you stupid Black."

[¶7] Once class had ended, B.W., who was in tears, told Brousseau that " [Student A] was being mean." Brousseau " said that she would handle it." Brousseau had noted a great deal of conflict in the group, including between B.W. and Student A. In fact, she considered it to be the most dysfunctional group she had ever educated. Brousseau placed most of the blame for the conflict on B.W.

[¶8] Later that day, B.W. and Student A were seen by a teacher, Brody LaRock, throwing crab apples at one another while waiting for the school bus. B.W. told LaRock that he had thrown the crab apple because Student A had not listened to his ideas in class that day. LaRock directed the boys to report to his office the following day. Student A filled out an incident report and was disciplined with a one-day in-school suspension. B.W., however, was out of town with his family, and so LaRock referred the matter to Mary Jo Budzius, a coprincipal, for further action.

[¶9] On October 10, B.W. told his parents that Student A had told him, " Shut up, you stupid Black." The Parents had previously scheduled a meeting with Brousseau and Budzius for October 11; yet, upon hearing what Student A had said to B.W., R.W. e-mailed both Brousseau and Budzius to inform them that she had an additional issue to [186 Wn.App. 946] discuss with them. At the October 11 meeting, the Parents told Brousseau and Budzius what Student A had said to their son.

[¶10] Although Budzius believed that B.W. had heard the word " Black," she did " not know whether he heard it with his ears, or only in his own mind." Despite her skepticism, Budzius spoke with Student A the day after meeting with the Parents. Student A admitted calling B.W. " stupid" but denied calling him " stupid Black." Budzius talked to Student A about not using race as the basis for angry comments and had him sign an " anti-harassment contract." Budzius also distributed a behavior contract to Student A's teachers concerning inappropriate interactions with his peers.

[¶11] Budzius decided not to question Students B or C.[2] She made this decision for several reasons. First, she " reasoned [that Student A] would not lie about calling [B.W.] 'stupid Black'" because Student A had already admitted to calling B.W. " stupid." Second, she believed that, owing to Asperger's syndrome, B.W. struggled to read social cues. In fact, Budzius believed that the

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source of conflict between B.W. and Student A was attributable to B.W.'s social deficits.

[¶12] Like B.W., Student A was new to the District. In his brief time in the District, Student A had, on multiple occasions, engaged in disruptive behavior. In fact, when district staff contacted Student A's mother concerning the crab apple incident, it was the third time in that week alone that she had been contacted regarding her son's behavioral issues. Indeed, his behavior had been sufficiently troubling that he was the subject, on October 12, of a " Building Guidance Team" meeting--a group composed of various educators, administrators, and mental health professionals that meets to plan support for students in need of support, [186 Wn.App.
947] whether academic or otherwise. Notably, the meeting was unrelated to the allegation of racial harassment.

[¶13] The second incident took place on October 25. On that day, the class was studying ethnic diversity and tolerance. B.W.'s group was discussing " people from Mexico," Mexican culture, and Mexican food. " [Student A] again began saying cruel and derisive things to [B.W.]." B.W. ignored Student A's remarks until Student A said that B.W. " crossed the border from Mexico" and Student B said that B.W. was " 'exported' from Mexico." B.W. responded by asking Student B, " 'Why don't you make me a croissant for 25 cents, you French jackass?'" Student B is of French heritage.

[¶14] Following class, LaRock noticed B.W. crying in the lunchroom. LaRock invited B.W. to talk in LaRock's office. After being told by B.W. what had happened, LaRock had B.W. fill out an incident report. LaRock then asked building administrators to address the matter.

[¶15] Aaron Miller,[3] a coprincipal, investigated the second incident on the day it occurred. He conducted brief interviews of all five students, including B.W., who had been in the same small group. Each interview lasted around 10 minutes. While none of the other four students mentioned the remarks made by Students A and B to B.W., all four said that they heard B.W.'s remark to Student B. Nearly two months later, Student A revealed that the group had been discussing " people from Mexico," Mexican culture, and Mexican food. However, he did not disclose that information to Mr. Miller. When Mr. Miller finished these interviews, he e-mailed the Parents to inform them of the incident and his investigation.

[¶16] R.W. responded to Mr. Miller's message the following day. She reminded Mr. Miller that this incident was the [186 Wn.App. 948] second time that Student A had targeted her son on the basis of race. She also asked to file a formal complaint.

[¶17] In response to R.W.'s request to file a formal complaint, Mr. Miller sent her a " Harassment/Bullying Report Form." This form, which was no longer used by the District, directed the complainant to select either an " informal" complaint, which would be investigated by Islander Middle School, or a " formal" complaint, which called for an investigation by the District. Yet, Mr. Miller was already conducting an informal investigation.

[¶18] On October 27, Budzius wrote to all of B.W.'s teachers, inquiring whether they had experienced problems with B.W.'s behavior in their classrooms. Two of B.W.'s teachers responded to say that, while B.W. did have some behavioral issues, they did not raise significant concerns. Budzius did not similarly inquire about Student A's behavior. This was in spite of the fact that, in his first two months in the District, Student A had displayed significant behavioral problems on multiple occasions, which prompted District staff to respond by holding a Building Guidance Team meeting. As previously noted, Budzius believed that the source of conflict between B.W. and Student A was attributable to B.W.'s social deficits.

[¶19] Also on October 27, Budzius asked Harry Brown, a counselor, to provide assistance to B.W. with social skills. However, Budzius did not ask Brown to provide counseling to B.W. regarding the incidents of ...

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